ULC Updates Tort Law Relating to Drones Act

So where do we stand on the latest (and final) draft of the ULC's Tort Law Relating to Drones Act? If you've been following along, you'll understand that this is all about the future of drones, drone lawsuits, land owner rights, and privacy rights. If this is the first you've heard of it, read on. You'll learn a bit along the way.

Who is the Uniform Law Commission (ULC)?

For those not familiar with what the Uniform Law Commission is, and what their role in legislation is, please take a moment and read the Uniform Law Commission’s overview page. If you’re a policy geek like me, it may be interesting reading for you. If not, at least you’ll have a background on what the ULC does. The Uniform Law Commission (ULC) is a private non-profit association of Bar Members and holds no official power. But, they hold significant influence over how states draft their laws. No ULC Act is active unless passed by a state legislature.

ULC Updates Tort Law Relating to Drone Act - From Horrifyingly Abysmal to Incredibly Workable

In November of 2017, the Uniform Law Commission (ULC) introduced the Tort Law Relating to Drones Act Committee. In December, they published their first draft of that act. That first draft was so horrid that its’ language had the very real likelihood of destroying the Commercial sUAS (drone) Industry in its infancy. And it could have done the same thing to the hobbyists.

It’s been a frustrating and occasionally contentious battle for sure, but thanks to the diligence and actions of the sUAS Community, the final version of the Tort Law Relating to Drones Act being sent to Anchorage in July will be one that not only protects landowners from aerial trespass (the general point of the committee), it provides exceptions and protections for the sUAS community as well. Those protections are offered to both hobbyists and non-hobbyists alike.

The reason for this success is attributable directly to those within the sUAS community who took the time to get educated and involved. And I’d be remiss if I didn’t also credit those on the Uniform Law Commission (ULC) committee who listened to us and provided us with information. I’ll have a list of people to thank at the end, but I’m going to leave committee members off of that list because they still have to work with those on the committee who may not like drones at all. And there are at least a couple who don’t. I don’t want to create any animosity. Those ULC committee members who helped us know who they are, and we as a community of safety conscious drone operators want to thank you publicly. Unfortunately, we’ll have to do it via back channels.

Recalling the First Draft of ULC's Tort Law Relating to Drones Act | Our Misplaced Fear over Drones and Privacy Rights

A little history lesson is in order for those not in the loop since the beginning. On our Drone U podcast, we took an in-depth look at the first draft of the ULC's Tort Law Relating to Drones Act. Citing the need for maintaining homeowner and tenant privacy, this proposed bill would have severely restricted airspace for drone pilots. Remember, this has all changed and should be viewed as a history lesson, not current events.

You can also read my blog post about this as well. It also speaks to the ridiculousness of the original language in the first draft.

But basically, this boiled down to the language being used to effectively take the first 200’ of the National Airspace System (NAS) away from drone operators. The committee was trying to draft language that made it possible for a landowner to sue a drone owner for simply flying their drones less than 200’ over the land in question. And since it would be a tort law (civil instead of criminal), there was no FAA Preemption. That was attempted to provide a remedy for not only aerial trespass, but also land possessor privacy. Whoever, privacy is pretty well set by numerous US Supreme Court rulings.

The original intent and language from the committee’s work galvanized the sUAS community in this country. The new language in the final draft of the "Tort Law Relating to Drones Act" is so much better than the old language, it seems like they just threw the initial act out the window, and started over. If so, that was a smart move.

Pros & Cons of the Uniform Law Commission's (ULC) Final Draft – “Tort Law Relating to Drones Act”

Before I get into specific parts of the final draft of the ULC''s "Tort Law Relating to Drones Act", go here and download it. Open it up so you can follow along below. Otherwise, I’d have to quote the draft and this would be a 10,000-word article. And no one wants to read one of those.

Please read through it and include the Comments under each section. This will help you understand the thinking of the committee members on why that language was chosen or included.

So let’s talk about a few sections. First, the cons (honestly, there aren’t many):

Section 3. Scope: To me, the inclusion of “owner” to the UAS means you better keep tabs on who has your birds, and what they’re doing with it.
Section 4 (b): Also includes owners, see above.
Section 5 (b) (7): Emotional injury is preposterous. It’s so subjective as to become pointless, but can be used by a Land Possessor to file a complaint.
Section 5 (d): Someone here could possibly revoke permission after the fact, and use it to bring a suit. “After notification” language would have been nice to be included here. If you’ve flown over your neighbor’s home for months without issue, but now they don’t like it, the first inkling you’d have of their displeasure could be a summons to appear.
Section 7 (b): Does not include protection for the sUAS operator, not any of the flight crew associated with the operation. This was argued for, but the committee ran out of time before being able to include it. This could, however, be added if (when) your state enacts this (more below).

And that’s pretty much it when it comes to the major bad parts of this act. There are arguably some annoying parts, but I’m of the mindset that it’s okay to lose a skirmish or two, as long as you win the war. And in my opinion, we won this war hands down.

Okay, the pros (or at least the highlights of the pros):

This isn’t law!: As mentioned, this is only used by states to craft their own tort laws. This is intended to keep laws uniform from state to state to make our lives easier as interstate drone pilots and hobbyists.
Section 2. Definitions: They’ve added “lawful possession” to the “Land Possessor” definition. This precludes squatters or those under court-ordered foreclosure from filing suit. So we can fly those bank ordered missions without the fear of being successfully sued.
Section 4 (b): This entire section makes it clear that nothing in this act can supersede Federal Law. Federal Preemption can still be used when appropriate, and any law crafted from this act must take Federal Preemption into account.
Section 5 (b): This section consists of 13 different factors that must (can) be used to determine if an aerial trespass has occurred. Each of those factors must be used in that determination, and no single factor can be used to bring the suit successfully. The list must be used as a whole. However, not all parts of that list will apply to all instances (physical damage for example).
Section 5 (b) (2): The purpose of the overflight is important. We routinely fly over adjacent properties to get imagery of different properties. Why we flew over is important.
Section 5 (b) (7): Although the emotional injury is unnecessarily in this section (as mentioned above), “physical damage” is also listed. So that can be used as a defense.
Section 5 (b) (10): This easily prevents someone from being successful in a suit if they weren’t even home at the time. They would still have the physical damage aspect (7), but the emotional damage would be pointless.
Section 6. Trespass to Land: This entire section gives not only distinct definitions of what Trespass to Land actually is, but it also gives specific examples of when we as drone operators are not liable. It further protects land possessors in the event of damage.
Section 6 (d): If we land on someone’s property, we are allowed to have reasonable access to that property to retrieve our drones. As long as it’s within existing state law.
Section 7. Duty and Liability of Land Owners. Many of us (sUAS owners) are also lands owners. So we should like all of this section. This section tells the land possessor what must be done when it comes to known or unknown UAS above their land, but it also says that they don’t have to ensure their airspace is free of obstacles. That is our responsibility as drone operators.

As mentioned above, this is so much better than the initial language published by this committee; it’s night and day. There is nothing we can’t live within the final draft, and there’s plenty that protects us.

Another way you can tell this leans in our direction as drone owners is that there was one very vocal attorney on the committee that insisted that final draft of the "Tort Law Relating to Drones Act" had basically turned into a drone operator’s Bill of Rights. He is a land use attorney, so I see his point of view, but he mentioned several times how he felt during the teleconferences. And yes, I’m one of those weird people who apparently likes to listen to lawyers argue over the phone. The good news is, that of the 20 or so other committee members, only 2 or 3 agreed with him, and a larger number told him (in a nice lawyerly way) that he was being silly.

So What’s Next?

On July 12-18^th, this Tort Law Relating to Drones Act will be read in front of the entire ULC membership in Anchorage. It will be its second reading at a National Conference and voted on by the entire ULC, as required. During that time, there may be additional discussions and revisions before the vote, however, it shouldn’t change much. If the act passes, it is published and becomes a template of sorts for any state wishing to craft drone tort law.

At that point, our focus as an industry would need to turn towards our individual state legislatures, because that’s where this language would be turned into law. Keep an eye on your state’s legislative sessions each year (especially for the next couple of sessions) and watch out for any drone tort laws being drawn up. If you see some, compare the language to the ULC language, and make sure they’re similar. If not, get in touch with the bill’s sponsors and offer assistance. And make sure you have a well-educated coalition of your state’s drone owners prepared to graciously raise a stink over any unfavorable legislation.

This entire process, from the initial horrid language in November of 2017 to the final draft today, is a testament to the willingness to set aside what seems to be our petty differences and fight together for a favorable outcome. This is a perfect example of the power we have as a single voice singing the same tune.

I’d like to see us continue that camaraderie when it comes to DAC issues, or even when the FAA brings about new regulations. We need to all fight for what’s best for the entire community, not just our own little section of that pie.

And of course, we need to publicly thank those Uniform Law Commission (ULC) committee members who were open to discourse and had an open mind to our concerns. I genuinely believe they had honorable intentions at the beginning, yet we're just not educated enough about the subject of drones to understand how their initial language would affect us truly. And that’s not meant as a negative. They were (mostly) incredibly open to suggestions from us. That’s all we should ever expect.

Both sides deserve a nice pat on the back for this entire process. Well done all!!!

~Vic Moss~

Moss Photography/Drone U

Vic Moss is a commercial photographer with over 30 years experience. He is also a national voice for drone safety and reasonable drone regulation. Vic has worked with numerous cities and states to help craft drone regulations that don’t inhibit safe and responsible drone use. Vic is also a FAASTeam member and one of three UAS specialists in the Denver FSDO Service Area. As a frequent contributor in many UAS forums, Vic keeps tabs on the pulse of all things UAS. Vic’s duties as a co-owner of Drone U include photography instruction, legislative liaison, and Elite pilot instructor. Vic was recently appointed to the FAA’s Drone Advisory Committee Waiver Task Group. You can get in touch with Vic by emailing him at [email protected]

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